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UTKOR v. MCELROY

April 11, 1996

OLGH UTKOR and IBEG UTKOR, Petitioners, against EDWARD McELROY, District Director of the United States Immigration and Naturalization Service, and PAUL SCHMIDT, Director of the Executive office for Immigration Review and Chairman of the Board of Immigration Appeals, Respondents.


The opinion of the court was delivered by: SOTOMAYOR

 SONIA SOTOMAYOR, U.S.D.J.

 This action is a petition for a writ of habeas corpus pursuant to 8 U.S.C. § 1105a(b)(10) challenging an order of exclusion by the Board of Immigration Appeals (the "BIA") denying the petitioners' request for asylum and withholding of exclusion under sections 208 and 243(h) of the Immigration and Nationality Act (the "INA" or the "Act"), 8 U.S.C. §§ 1158 and 1253(h). *fn1" For the reasons set forth below, the petition is DENIED.

 BACKGROUND

 This petition seeks relief for two brothers, natives of Afghanistan, who left their country in 1989 rather than serve in the Afghan army. From 1981, when Soviet troops intervened in support of a pro-Soviet government, until the victory of the anti-government Mujahedeen in April, 1992, Afghanistan was the last great battleground of the cold war, pitting the United States-supported Mujahedeen against the Soviet army. The petitioners sought to remain neutral.

 The following narrative is drawn from the petitioners' testimony at their exclusion hearing before the Immigration Judge (the "IJ"), held on September 17, 1990, which testimony the IJ found "credible and forthright." R. 28. The older brother, Ibeg, was conscripted into the Afghan army in June of 1988, when he was 14 years and six months of age. He paid a bribe in order to be posted to his hometown of Kabul, the capital city, because "[a] war was going on out of Kabul and everyone who went there they were killed by Russian Army and that's why I'd rather stay in Kabul." R. 40-41. *fn2" In his asylum application he had stated: "I constantly feared being sent to a battle zone .... I did not wish to be in the army and kill my fellow Afghans." R. 68. Ibeg deserted after nine months but was captured and detained for 24 hours. After paying another bribe, he was released and returned to his Kabul posting. In February, 1989, Soviet troops withdrew from Afghanistan. In March or April, Ibeg deserted again and successfully fled to Pakistan with his brother Olgh, where they remained until entering the United States in August, 1989. Ibeg claimed never to have engaged in political activities while in Afghanistan, and that he and his brother had not joined the Mujahedeen when in Pakistan, even though the Mujahedeen had aided his brother and himself once they arrived there.

 Olgh is approximately one year younger than Ibeg, and at about the time Ibeg was inducted, was himself taken to an army base and held for 24 hours but released because he was not old enough for induction. Olgh testified that later the army was searching for draft age men in his neighborhood and that he remained in his parents house in order to avoid conscription until he left Afghanistan with his brother. Olgh also stated he had never been involved in political groups. Olgh speculated that if he was deported to Afghanistan, "the first thing I know they will do is they will punish me and they will take me immediately to the war zone." R. 65. In his written asylum application, he was more emphatic: "If I refused to fight against my fellow Afghans, I would be killed." R. 77.

 Both petitioners conceded they were excludable under the INA because they had entered the United States without proper documents, but they claimed to be refugees eligible for asylum and withholding of deportation. The IJ denied their request in an oral ruling at the conclusion of the hearing, holding that "they have failed to establish that the punishment which may be meted out against them would be persecution on account of one of the five grounds within the Act for which protection is afforded." R. 30. *fn3"

 The petitioners timely appealed to the Board of Immigration Appeals (the "BIA") in 1991, citing two grounds: (i) that the withdrawal of Soviet troops had not materially changed conditions in Afghanistan, and thus a 1990 BIA decision reversing an earlier policy of granting limited relief to Afghan aliens escaping conscription should be overruled, and (ii) that petitioners were members of a "social group" comprised of young Afghani males who had refused to take part in the killing of their fellow citizens. R. 12. The appeal was denied by a per curiam order dated October 19, 1993. Between the time of the hearing before the IJ and the BIA decision, the pro-Soviet Afghan government was overthrown by the Mujahedeen.

 The BIA based its denial of the petitioners' appeal on two alternative grounds:

 
(1) "The fact that an alien may be subject to military service in his native country does not demonstrate a well-founded fear of persecution;" R. 3 (citations omitted); and
 
(2) "We take administrative notice of changed political conditions in Afghanistan since the applicants' hearing. In April 1992, following some 14 years of civil war, the mujahidin guerrilla forces finally deposed the Communist government ... [and] as the applicants' stated claim relates solely to a threat from the Communists, under the present circumstances we do not find that the record now before us supports a determination that they have a well-founded fear of persecution in Afghanistan. While subsequent infighting among the victorious factions has led to periods of civil unrest, these conditions which affect the country's entire population do not establish persecution within the meaning of the Act. Moreover, the applicants' asylum claim in not based upon or related to these conditions." R. 4 (footnote and citation omitted).

 The Immigration and Naturalization Service served Olgh Utkor with a notice dated June 14, 1995, requiring him to report for deportation on July 11, 1995. This petition was filed on July 10, 1995. ...


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